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Postnuptial agreements can provide solutions to complicated issues that may arise during the marriage. Consequently, there has been a reported increase in the number of postnuptial agreements being drafted by practitioners.
While postnuptial agreements are not enforceable in every state (Ohio, for example), some states place substantial limitations on the ability of a husband and wife to enter into these agreements. The following 11 states evaluate post-nuptial agreements under the same statute as pre-nuptial agreements: Alabama, Florida, Hawaii, Indiana, Kentucky, Missouri, Pennsylvania, Utah, Virginia, Washington and Wisconsin. The following 15 states impose greater restrictions on post-nuptial agreements than pre-nuptial agreements: Arizona, Arkansas, California, Connecticut, Delaware, Louisiana, Minnesota, Montana, New Jersey, New Mexico, New York, Ohio, Oklahoma, Tennessee, Wyoming and Puerto Rico. Other states impose myriad requirements on post-nuptial agreements for them to be enforceable. For example, couples in Minnesota may enter into a postnuptial agreement only if: 1) each spouse has a net worth of $1.2 million; and 2) the couple stays married for at least two years after the agreement is executed. Several states including New Jersey and Tennessee require that a post-nuptial agreement meet standards of substantive fairness both at the time it is signed and at the time it is ultimately enforced. With regard to post-nuptial agreements, California imposes a rebuttable presumption of coercion. (Citations to the relevant statutory and case law are available upon request to the editor.)
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